22-249-98 Lli(L) BETWEEN 10 1. TR. NYUTAN AK JAMI

1 22-249-98 lll 5 MALAYSIA IN THE HIGH COURT IN SABAH AND SARAWAK AT KUCHING SUIT NO: 22-249-98 llI(l) BETWEEN 10 1. TR. NYUTAN AK JAMI (K.544160) 2. GANGAK ANAK GUMA (K.500444) 3. LANGA ANAK KAMA (K.544351) [Suing for and on behalf of themselves and 15 183 other residents of Kampong Lebor, Jalan Gedong, 94700 Serian, Sarawak] …Plaintiffs AND 20 1. LEMBAGA PEMBANGUNAN DAN LINDUNGAN TANAH (LAND CUSTODY AND DEVELOPMENT AUTHORITY) Tingkat 10, Wisma Bapa Malaysia Petra Jaya 93450 Kuching, Sarawak 25 2. NIRWANA MUHIBBAN SDN. BHD. (238058) Lot 298, 2nd Floor Lorong Rubber No. 9 30 Rubber Road, 93400 Kuchign 3. STATE GOVERNMENT OF SARAWAK …Defendants 35 BEFORE THE HONOURABLE JUSTICE DATUK CLEMENT SKINNER IN OPEN COURT 40 2 22-249-98 lll 5 JUDGMENT The plaintiffs are Ibans by race and natives of Sarawak. The 1st defendant is a body corporate constituted under the Land Custody and Development Authority Ordinance 1981. The 2nd defendant is a 10 company duly incorporated in Malaysia while the 3rd defendant is the State Government of Sarawak. The 1st, 2nd and 3rd plaintiffs represent some 183 other residents of Kampong Lebor, Jalan Gedong, Serian, Kuching and claim that prior to 1.1.1958 they and their forefathers had acquired native customary rights over areas of land which included 15 about one kilometer along both banks of Sungei Tampoi („the Sungei Tampoi land”) some parts along Sungei Krang (“the Sungei Krang land”) and at Sungei Meringgang (“the Sungei Meringgang land”). The extent of the area or boundary of the lands claimed by the plaintiffs as their native customary lands is described in more detail later. 20 The plaintiffs claim that their ancestors had occupied and cultivated their native customary lands since the rule of the Brunei Sultanate to whom a tribute was paid. The plaintiffs say they are still in occupation of those lands till today. 25 The 1st and 2nd defendants are the registered co-proprietors of 3 parcels of land, namely, Lot 2 Block 6 Melikin Land District (hereafter “Lot 2”), Lot 166 Block 5 Melikin Land District (hereafter “Lot 166”) and Lot 7 Block 3 Melikin Land District (hereafter “Lot 7”). Apparently the Lot 30 number of Lot 7 has change to Lot 2979 but I shall continue to refer to it as Lot 7 as this is how the parties have referred to it. These 3 parcels of land were alienated to the 1st and 2nd defendants by the 3rd defendant. 3 22-249-98 lll 5 The plaintiffs claim that parts of their native customary lands have been included in the 3 parcels of land alienated to the 1st and 2nd defendants. In early 1997 the 1st and 2nd defendants entered the 3 parcels and began clearing works for oil palm cultivation. The plaintiffs claim that the inclusion of their native customary land within the 3 parcels of land and 10 the destruction of their crops was unlawful and without their consent, or without their native customary rights over their land being first extinguished or without the payment of any compensation to them. Hence they seek the declarations and relief prayed for in this suit. 15 The 1st, 2nd and 3rd defendants deny that the plaintiffs have acquired any native customary rights to the areas claimed by them for the following reasons: (1) They say the 3 parcels of land do not include any native customary land as virgin jungle has at all material times existed on 20 the 3 parcels of land. (2) The 1st and 2nd defendants say that the areas claimed to be farmed by the plaintiffs fall outside the boundary of the 3 parcels of land. (3) In 1976 pursuant to section 6(1) of the Land Code, the Native 25 Communal Reserve (No. 4) Order 1976 was published in the Sarawak Gazette 51/76, whereby 121 parcels of land were declared Native Communal Reserve in the Melikin Land District. Out of these 121 parcels, 26 parcels of land were reserved for the Ibans of Kampong Lebor (i.e. the plaintiffs) for their kampong and 30 agriculture purposes and as burial sites. Accordingly the 3rd 4 22-249-98 lll 5 defendant contends that the plaintiffs rights over the land are confined to those 26 parcels of land only; (4) That the 3 parcels of land fall outside the area of land claimed by the plaintiffs; 10 (5) That the land on both sides of the Sungei Tampoi on the right hand side of Jalan Gedong was virgin jungle in 1978 and land on both sides of the river were issued with Forests Timber Licence No. T/5102 and T/5108 which were granted to Syarikat Eastern 15 Sawmill Sdn Bhd and Nawi Sulaiman & Yusof Sheikh Mutu respectively. Further under s 38 of the Land Code, all lands within 66 feet of the banks of all navigable rivers, streams canals or creeks shall be reserved for Government; 20 (6) That the Sungei Krang land claimed by the plaintiffs is not within the area claimed by the plaintiffs as indicated in the map attached to the plaintiffs‟ Statement of Claim; (7) That the Sungei Meringgang land is also claimed by the people of 25 Kampong Marakai; that the area was covered by virgin forests in 1978; (8) There was nothing wrongful or unlawful in the 3 parcels of land being alienated to the 1st and 2nd defendants as alleged. 30 he issues for trial. 5 22-249-98 lll 5 The parties did not settle the issues at the same time. As a result the plaintiffs/1st and 2nd defendants agreed to certain issues while the 3rd defendant submitted its own issues to be tried. I find the issues raised by the parties overlap. In their closing submissions the plaintiffs and the 10 1st and 2nd defendants agreed that it would be most convenient if the court addresses the Issues raised by the 3rd defendant which I now do. 1. Whether the Plaintiffs are entitled to bring this action on their own behalf as well on behalf of the residents of their 15 longhouse Kampong Lebor, Jalan Gedong, Serian, Sarawak? The 1st, 2nd and 3rd plaintiffs have sued in a representative capacity for themselves as well as the other 183 residents of Kampong Lebor. The 1st plaintiff TR Nyutan Ak Jami (PW1) is the Tuai Rumah or 20 Headman of Kampong Lebor, having been appointed in 1986 to that position. By the time this case was heard the 2nd plaintiff had been elected to be Tuai Rumah but was still waiting recognition from the government. The evidence shows that when meetings were held between the representatives of the Government, the 1st and 2nd 25 defendants and the residents of Kampong Lebor to resolve differences that had arisen over allegations that the crops of the latter had been wrongfully destroyed by the 1st and 2nd defendants clearing the land to plant oil palm, it was TR Nyutan Ak Jami who represented the residents of Kampong Lebor. 30 6 22-249-98 lll 5 Order 15 r 12 Rules of the High Court 1980 permits the bringing of representative proceedings. To be able to bring this representative action, what the plaintiffs have to show is that they are members of a class having a common interest and a common grievance and the relief sought is beneficial to all whom the plaintiffs represent (see Bedford 10 (Duke) v Ellis [1901] AC7, which was followed by Haidar J (as he then was) in Jok Jau Evong & 2 Ors v Marabong Lumber Sdn Bhd & 2 Ors [1990] 2 CLJ 625. I find the plaintiffs have satisfied the conditions just mentioned. 15 The plaintiffs and the 182 other residents are members of a class i.e. a community of Remun Ibans who live in and around Kampong Lebor which was originally a longhouse community but now also includes individual houses since the community has increased. They have a common interest and grievance, in that, they claim to have acquired 20 native customary rights over lands, certain parts of which have allegedly been wrongfully alienated to the 1st and 2nd defendants by the 3rd defendant. The nature of the relief they seek will also be beneficial to them all as the declarations and orders sought, if successful, will allow them as members of the Iban community at Kampong Lebor to continue 25 to assert their native customary rights over lands they claim as their native customary lands. The defendants had questioned whether the plaintiffs had obtained the consent of all who they purport to represent, which the 30 plaintiffs say they do as they have obtained the oral consent of the other residents of Kampong Lebor, but it is well settled that consent is not 7 22-249-98 lll 5 necessary to bring a representative action (see Marke & Co. Ltd v Knight Steamship Co. Ltd [1910] 2 KB 1039). 2. Whether the plaintiffs have lawfully acquired or created native customary rights (NCR), as recognized by the Land Code 10 (Sarawak Cap.81) and the other relevant legislation preceding the Land Code, over the parcels of land described in paragraph 2(c) of the Statement of Claim (hereinafter referred to as “the said parcels of land”). I should point out that the parcels of land being referred to in paragraph 2(c) of the 15 Statement of Claim are Lot 2, Lot 166 and Lot 7. 3. Whether any lands over which the plaintiffs have lawfully created NCR are included in the Provisional Leases issued to the 1st and 2nd defendants.

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